Spandrel or Frankenstein's Monster? the Vices and Virtues of Retrofitting in American Law

Dorf, Michael C., William and Mary Law Review

INTRODUCTION

Ancient mythology, literary fiction, and modern science fiction films all recount a similar cautionary tale: human ingenuity gives rise to a powerful invention, but through human fallibility and, in some tellings, venality, the invention becomes a monster and turns on its creators. Perhaps the most famous example is Mary Shelley's Frankenstein, in which Dr. Frankenstein's attempt to fashion a living man from the dead remains of others succeeds, only then to go horribly awry. (1) Such stories are timeless because they warn of the dangers of indelible features of human nature: hubris and shortsightedness. Recent large-scale catastrophes such as the 2010 Deepwater Horizon Gulf oil spill and the 2011 tsunami-induced radiation leakage at the Fukushima nuclear power facility are only the latest reminders of the limits of human ingenuity and the continuing relevance of the Frankenstein story.

But if the unintended consequences of human ingenuity can sometimes prove disastrous, at other times, they may turn out to be felicitous. We are all familiar with accidental inventions like penicillin, (2) Post-it Notes, (3) and the microwave oven. (4) Spandrels are a more whimsical example. A spandrel is the space between a curved arch and a rectangular boundary; (5) although an artifact of architecture and geometry, since ancient times, artists and architects have used spandrels to enhance the beauty of buildings. (6)

We see a similar process in nature: evolution, or in the case of human culture, our own artifice, retrofits organs and capacities that were originally selected for one purpose to serve some very different purpose. Feathers evolved as insulation but proved useful for flight. (7) Evolutionary biologists debate the causal origins of sophisticated human language, (8) but it certainly did not evolve to enable the writing of sonnets or the delivery of lectures on law. The late evolutionary biologist Stephen Jay Gould popularized the term "exaptation" to refer to this phenomenon, expressly analogizing it to spandrels in architecture. (9)

So much for literature, science, and art. Let me turn now to something about which I am more qualified to express an opinion: law. The law contains numerous examples of retrofitting. Legal institutions, doctrines, and texts that were originally thought to serve one purpose can come to serve quite different purposes.

Consider the jury. We think that the role of the jury is to represent the common sense and values of the community in finding the facts and applying the law. (10) In doing so, jurors must avoid bias. (11) Thus, lawyers and judges question prospective jurors to weed out those with experiences or prior relationships with parties or witnesses that might interfere with their ability to make a decision solely based on the law and the evidence presented in court. (12)

Yet the medieval English jury--from which our modern jury evolved (13)--was composed of people from the locale in which the disputed events took place precisely because local jurors would have knowledge of the facts and parties based on their prior relationships. (14) In other words, medieval jurors served both of the functions now served by jurors and witnesses. What we would now call a juror's disqualifying bias was the very characteristic that rendered medieval jurors qualified to sit in judgment.

Does that mean that the modern jury is normatively unjustified? Not necessarily. A post hoc rationalization can nonetheless be a good justification. Still, the knowledge that some legal institution or practice that we take for granted was originally understood to serve purposes wholly unrelated to its contemporary justification should at least give us pause. Reflecting on the accidental quality of our institutions and practices can be a first step toward examining their efficacy relative to other possible arrangements.

In this Lecture, I shall provide additional examples of retrofitting of the sort just described: legal doctrines, texts, and practices that initially served one purpose coming to serve some quite different purpose. …

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